Wickham Contracting Co., Inc. v. Board of Educ. of City of New York

• Decision Date: 05 August 1983
• Docket Number: D,358,AFL-CI,Nos. 210,s. 210
• Citation: 715 F.2d 21
• Parties: 114 L.R.R.M. (BNA) 2514, 98 Lab.Cas. P 10,385, 1983-2 Trade Cases P 65,552 WICKHAM CONTRACTING CO., INC. and Ralph Perone, Plaintiffs-Appellees-Cross-Appellants, v. The BOARD OF EDUCATION OF the CITY OF NEW YORK, Hugh McClaren, Jr., Thomas Van Arsdale and Bernard Rosenberg, Defendants-Cross-Appellees, Local Union Number 3, International Brotherhood of Electrical Workers,efendant-Appellant-Cross-Appellee. ockets 82-7249, 7259.
• Court: U.S. Court of Appeals — Second Circuit

Page 21

715 F.2d 21

114 L.R.R.M. (BNA) 2514, 98 Lab.Cas. P 10,385,

1983-2 Trade Cases P 65,552

WICKHAM CONTRACTING CO., INC. and Ralph Perone Plaintiffs-Appellees-Cross-Appellants, v. The BOARD OF EDUCATION OF the CITY OF NEW YORK, Hugh McClaren, Jr., Thomas Van Arsdale and Bernard Rosenberg, Defendants-Cross-Appellees Local Union Number 3, International Brotherhood of Electrical Workers, AFL-CIO Defendant-Appellant-Cross-Appellee.

Nos. 210, 358, Dockets 82-7249, 7259.

United States Court of Appeals Second Circuit.

Argued Oct. 22, 1982.

Decided Aug. 5, 1983.

Norman Rothfeld, New York City, for defendant-appellant-cross-appellee Local Union Number 3, Intern. Broth. of Electrical Workers, AFL-CIO.

Irving B. Lampert, New York City, for plaintiffs-appellees-cross-appellants Wickham Contracting Co., Inc. and Ralph Perone.

Dody Schorr, Asst. Corp. Counsel of the City of New York, New York City (Frederick A.O. Schwarz, Jr., Corp. Counsel of the City of New York, Ronald E. Sternberg, Evelyn Jones, New York City, of counsel), for defendants-cross-appellees Bd. of Educ. of the City of New York.

Before OAKES and WINTER, Circuit Judges, and METZNER, District Judge. ^*

WINTER, Circuit Judge:

Local No. 3 of the International Brotherhood of Electrical Workers, AFL-CIO ("Local 3") appeals from a judgment holding it liable for violations of the Sherman Act, 15 U.S.C. § 1 (1976) and section 303 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 187 (1976). The jury awarded damages to the plaintiffs in the amount of $959,000 on the LMRA claim. It also awarded $158,000 (trebled to $474,000) on the antitrust claim, the final judgment including an additional $15,000 in attorney's fees. Allegations against Local 3 of violations of the Civil Rights Act, 42 U.S.C. § 1983 (1976) and tortious interference with contractual relations were dismissed. Also dismissed were all claims against the Board of Education of the City of New York ("School Board") and the individual defendants. The plaintiffs, Wickham Contracting Company ("Wickham") and Ralph Perone, cross appeal from those dismissals.

We reverse the judgment holding Local 3 liable for violating the Sherman Act and remand for a new trial. We affirm so much of the judgment as held Local 3 liable for violating the LMRA but reverse the damage award and remand for a new trial on damages. We affirm the cross appeal.

We note that we have been severely hampered in untangling and resolving the issues in this case by the failure of counsel to file with the court a supplemental appendix relied upon heavily in the briefs and by the failure to comply with F.R.App.P. 30 by not including highly important parts of the record in the appendices. These included the complaint, relevant testimony, and portions of the district court's charge.

BACKGROUND

The factual circumstances surrounding this case were previously litigated and decided by the National Labor Relations Board ("NLRB") in two unfair labor practice actions and by this court in an enforcement proceeding. In Local 3, International Brotherhood of Electrical Workers, AFL-CIO, 220 N.L.R.B. 249 (1975), the NLRB adopted Administrative Law Judge ("ALJ") Schlezinger's findings that Local 3 "restrained and coerced" Wickham in the selection of collective bargaining representatives in violation of section 8(b)(1)(B) of the Act.

                29 U.S.C. § 158(b)(1)(B) (1976). 1  In  Local 3, International Brotherhood of Electrical Workers, AFL-CIO, 220 N.L.R.B. 785 (1975), the NLRB adopted ALJ Plaine's findings that Local 3 induced many of its members employed by electrical contractors to walk off School Board jobs in an effort to force the School Board to cease doing business with plaintiffs in violation of section 8(b)(4)(B)'s prohibition of secondary boycotts. 2  We granted enforcement of the resulting orders.   N.L.R.B. v. Local 3, International Brotherhood of Electrical Workers, 542 F.2d 860 (2d Cir.1976)
                

The facts found by both ALJs were essentially as follows. Local 3 represents electricians who are employed by contractors to perform construction work. Wickham and Ralph Perone formed a joint venture ("Wickham-Perone") to do electrical work on construction contracts in New York City as permitted by Perone's electrical license. Perone is a party to a collective bargaining agreement with the Teamsters. Wickham is a member of the United Construction Contractors Association ("Association"), a multi-employer group which also bargains with the Teamsters. During 1974, Wickham-Perone was engaged as an electrical subcontractor on a number of School Board construction projects.

Beginning the week of July 8, 1974, between 200 and 300 members of Local 3 employed by electrical subcontractors working on School Board jobs walked out. The walkout lasted for two months until stopped by a temporary restraining order. Its objective "was to pressure the Board of Education, through pressure on its contractors, to cease doing business with electrical contractors whose employees were not Local 3 members, in particular contractors Wickham and Perone ... whose electricians were Teamster Local 363 members."

The walkout brought School Board projects to a virtual halt. Electrical work is generally done at an early stage and, until completed, other construction work cannot go ahead. On July 19, School Board Director Hugh McLaren met with Local 3's Business Manager Thomas Van Arsdale, who expressed concern over the job security of Local 3 electricians and demanded that only members of Local 3 should be hired to work on School Board projects. Van Arsdale expressly referred to Wickham-Perone and stated that it was not paying the prevailing wage rate. McLaren said that he would do all he could to see that Local 3 contractors were not unfairly bid against but that he could not guarantee jobs since contracts were awarded on the basis of competitive bidding.

Faced with the need to complete the construction projects before September school openings, however, the School Board decided to dismiss non-Local 3 contractors from School Board work. On July 19, 1974, letters were sent to Wickham-Perone and other Following receipt of the letter, Wickham's President Biele phoned McLaren for an explanation. McLaren at first said that Wickham was not paying the prevailing wage (a false charge in light of a City Controller's investigation) but later explained that Wickham's presence was causing work stoppages by Local 3 members. When Biele asked what he could do to alleviate the problem, McLaren answered that work could be resumed if Wickham's employees joined Local 3.

non-Local 3 contractors ordering them to stop work until such time as they could provide employees who would not cause stoppages.

On July 25, the School Board asked Van Arsdale to return Local 3 to work. Van Arsdale equivocated, saying that he would look into it but that he wanted a meeting with McLaren's supervisor, School Vice Chancellor Dr. Bernard Gifford. The meeting occurred that very afternoon. At the meeting, Van Arsdale again complained that Local 3 was not receiving all of the School Board's work. Gifford asked what Van Arsdale wished the School Board to do, but Van Arsdale said nothing. Gifford requested a written proposal, which Van Arsdale promised but never delivered.

A second meeting occurred on August 20, while the Local 3 stoppage continued. The participants at this meeting included Deputy Mayor Cavanaugh, School Chancellor Anker, Deputy Corporation Counsel Buxbaum, School Board President James Regan, and several School Board members. Van Arsdale, McLaren and Gifford were also present. Van Arsdale expressed concern about Local 3's job security and proposed a so-called "layoff" plan under which electrical workers for contractors on public projects would be put on a list once their work was completed and the contracts had expired. When new public projects arose, the contractors for those projects would be required to hire from the layoff list in the order of layoff seniority. The list, according to Van Arsdale, would include both Local 3 and non-Local 3 electricians. However, it was obvious that the list would consist predominantly of Local 3 electricians since they comprised the bulk of the labor force. For their part, city officials expressed doubts about both the legality and efficiency of the Van Arsdale proposal.

The Local 3 work stoppage continued until September 13, when the district court issued a temporary restraining order. In the meantime, Local 3's Business Representative Bernard Rosenberg made direct appeals to Wickham officials to convince them to switch Wickham's union recognition. In late spring, Rosenberg had visited Wickham's offices and argued that Local 3 could provide Wickham with qualified men. In July, after Wickham-Perone had received its notice from McLaren, Rosenberg met alone with Biele and told Biele that Local 3 could provide electricians to complete Wickham's School Board work, thus ending the effective boycott against Wickham. In September, after employees of Association members voted in an NLRB election to continue to be represented by the Teamsters, Local 3 set up pickets outside Wickham's Pelham office with signs stating that Wickham employees were on strike. In October, Van Arsdale met with Biele and requested that Wickham quit the Association and undertake a new election in which Wickham's employees would choose Local 3. Van Arsdale's basis for this demand was that some Wickham employees had already left the Teamsters for Local 3. Biele, however, said that only a few of his employees had affiliated with Local 3 and no agreement was reached. In fact, only three Wickham employees had left for Local 3 contractors. However, twelve Perone employees had also left for such contractors, thus raising the joint venture's loss to fifteen men. Further picketing by Local 3 occurred in early December at Wickham's Downstate Medical Center jobsite and at Wickham-Perone's ...